IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120010913 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was discharged or retired by reason of permanent disability.

2.  The applicant states, in effect, his medical conditions were aggravated by his service and he should have been discharged or retired by reason of permanent disability.

3.  The applicant provides a 16-page letter explaining his application, a copy of his separation orders, a page from his medical records, a copy of his appeal to the Department of Veterans Affairs (VA) along with copies of the results of his magnetic resonance imaging scan and outpatient treatment records, and articles about traumatic brain injury and post-traumatic stress disorder (PTSD).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army in Cleveland, Ohio, on 18 June 1965 for a period of 3 years and assignment to the Cleveland area.  At the time of his enlistment medical examination noted defective vision, hearing, and back strain in the past.  He was determined qualified for enlistment.

3.  He completed basic training at Fort Knox, Kentucky, and was transferred to a Hercules battery in Cleveland for training and assignment as a missile crewman.

4.  On 12 January 1967, he was transferred to Germany for assignment as a Hercules missile crewman.  On 8 September 1967, he was assigned to the 7th Army Soldier Chorus for duty as a choral singer.

5.  He departed Germany on 22 March 1968 for assignment to Fort Benjamin Harrison, Indiana as an entertainment specialist.

6.  The applicant underwent a separation physical examination which noted that he suffered from occasional low back pain and states his injuries were incurred prior to his enlistment.  He was deemed qualified for separation or retention.

7.  On 17 June 1968, he was honorably released from active duty (REFRAD) due to the expiration of his term of service (ETS).  He completed 3 years of active service.

8.  A review of his official records fails to show evidence to suggest he was not fit for duty or separation at the time of his REFRAD or that he should have been referred for evaluation through the Physical Disability Evaluation System (PDES).

9.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  This regulation also provides that when a Soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement creates a presumption that the Soldier is fit.

10.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

11.  There is a difference between the VA and the Army disability systems.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the physical evaluation board (PEB) hearing.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA's ratings are based upon an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's REFRAD was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He simply served until his contract had been fulfilled and he had met his active duty service obligation.

2.  In order to be eligible for processing under the PDES, an individual must have at least one unfitting condition and there is no evidence to show that such was the case.

3.  While his official records show he suffered from occasional low back pain both prior to entry and while on active duty, there is no evidence to show that the injury was unfitting or that improper medical treatment was rendered at the time.  The applicant continued to perform his duties until such time as he was REFRAD due to ETS.

4.  The fact that the VA, in its discretion, may have awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish any entitlement to additional disability compensation or medical retirement from the Army.

5.  Since there is no evidence of error or injustice in his case, there appears to be no basis to grant his request for a medical separation or retirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20120010913



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ABCMR Record of Proceedings (cont)                                         AR20120010913



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